The grizzled face, the devious smile – what you’re looking at, folks, is evil incarnate. Well not really, but given the firestorm of controversy surrounding the ongoing iPhone 4G/Gizmodo story, you might have thought otherwise.

As it turns out, the person who sold the iPhone 4G to Giz for $5 grand is just a regular 21 year old dude from Redwood City, California. And his name is Brian Hogan. Though Apple was aware of the perp’s identity even before the Police went a knockin’ on his door, his name remained a mystery until Wired was able to deduce that Hogan, pictured above, was indeed the the catalyst behind what was arguably the biggest gadget scoop in history.

Naturally, Hogan has retained a lawyer to deal with the ongoing saga, but his attorney did make a point of noting that Hogan regrets not doing more to return the phone to Apple. Corroborating, sort of, Gizmodo’s tale of the missing iPhone, it appears that the extent of Hogan’s efforts consisted of casually calling Apple Care, an avenue that expectedly led to a dead end – though we’re not entirely sure if that call was even made. Curiously, Hogan didn’t hand the prototype iPhone over to a bartender at The Gourmet Haus Staud where it was found, nor did he call the bar the next day to inquire if anyone had been asking around for it. We now know that the Apple engineer who was tasked with testing the device had called the bar repeatedly in the days following its disappearance asking if it had turned up. “The guy was pretty hectic about it,” recalled Volcker Staudt, the owner of the bar.

Over the past week and a half, a lot of vitriol has been directed in Gizmodo’s direction, and let’s not forget about California authorities blasting into the home of Gizmodo editor Jason Chen’s home and seizing an extensive number of electronic devices. But lost in this saga for the ages was Hogan himself, and whether or not authorities would be filing charges against him, or if they even knew who he was.

As things stand now, Hogan has already been interviewed by the authorities in California, but no charges have yet been filed against him. Hogan’s attorney has indicated that he is fully willing to cooperate with the ongoing criminal investigation.

But can Hogan be charged at all? In short, yes.

Section 485 of the California Penal Code states:

One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.

There’s no way to rationally argue that Hogan exercised a reasonable and just effort to return the iPhone to Apple. Again, he could have given it back to the bartender, called the bar – hell, he could have walked into an Apple Store and simply asked to talk to a manager. Calling Apple Care and subsequently offering the device to both Gizmodo and Engadget in exchange for greenbacks suggests that Hogan was never intent on returning the device in the first place. Moreover, it wasn’t even Hogan himself who called up Apple Care. According to his attorney, it was a friend of Hogan’s who volunteered to call on his behalf.

Still, who do you think is more at fault here – Hogan or Gizmodo?

Update: CNET is reporting that Hogan had a middleman friend named Sage Robert Wallower (what a name!) who helped him hock the iPhone prototype to Gizmodo. Wallower, a current UC Berkley student and former Navy cryptologic technician, is apparently the one who contacted both Gizmodo and Engadget with an enticing offer. And in another twist, a third, and as of yet unnamed party is also believed to have been part of the transaction.

Speaking to CNET, Wallower stated: “I’m not the person who found it. I didn’t see it or touch it in any manner. But I know who found it… I need to talk to a lawyer. I think I have already said too much.”

4 Comments For This Post

Gizmodo with extra culpability thrown at Gaby Darbyshire for asserting any legal expertise other than “we should talk to a lawyer experienced in these matters.” Hogan isn’t innocent. But, at least he has taken responsibility for his part in the saga.

This story seems to support the apparent interest of the police in the role that Gizmodo had in this event. This gentleman’s lawyer appears to be indicating that the suggestion that the phone be transferred to Gizmodo in exchange for money originated with Gizmodo. If in fact, the first suggestion to this effect came from Gizmodo, the event begins to look like a conspiracy on the part of Gizmodo to deprive Apple of its rightful property for their own use. In this case, it would be very reasonable that they might want to see the internal Grocker Media communications in order to identify, where the conspiracy originated.

Obviously, all of these observations are idle speculation as I can assure you that I have no personal knowledge of this event.

It’s not a question of who is MORE at fault. Hogan committed a crime when he decided to keep/sell the phone instead of returning it to the owner. It was very poor judgement and facing the consequences of a bad decision is just part of life. Gizmodo committed a different crime when it bought the phone.

“Corroborating, sort of, Gizmodo’s tale of the missing iPhone, it appears that the extent of Hogan’s efforts consisted of casually calling Apple Care, an avenue that expectedly led to a dead end – though we’re not entirely sure if that call was even made.”

I believe that the Wired story indicates that Hogan didn’t make that call himself. Rather, someone else, be it Wallower (that’s an unfortunate name) or another, so-far-unnamed person, apparently indicated that he would, on Hogan’s behalf. Which is where the question of whether any call was in fact made comes in.

It’s interesting that his lawyer is telling this story. Because that would mean that Hogan made zero effort, on his own, to return the phone to Gray Powell. That would seem like an admission of guilt under the California law. Under that law, Hogan was required to make “reasonable and just efforts… to restore the property to [Gray Powell].”

If, as his lawyer says, Hogan himself didn’t even make one phone call to try to return it, he didn’t exert *any* effort, reasonable, just, or otherwise. And it raises the obvious question – why wouldn’t he have at least made that call to AppleCare himself?

(My unfounded suspicion is that when Hogan realized what he had, he didn’t know what to do with it. He contacted Wallower and/or someone else, and he/they convinced him that they could make some money off of it, and not to do anything until they made a deal.)